Overseas Divorce – Supreme Court Identifies Unjust Defect in Matrimonial Law

A woman’s financial claims against her ex-husband following their overseas divorce did not survive his death. In reaching that conclusion, the Supreme Court noted that the case had exposed a defect in the law that can only be remedied by Parliament.

After the breakdown of the couple’s long marriage, the husband obtained a divorce in Pakistan. The divorce was recognised as valid in this country and the wife applied to the English courts for financial relief under Section 12(1) of the Matrimonial and Family Proceedings Act 1984. If successful, she would have been entitled to the same financial relief as if the divorce had been granted in England.

The wife’s claim had reached an advanced stage but had not been finally determined when the husband, a wealthy man, died aged 81 in Pakistan. A judge subsequently ruled that he was bound by authority to find that her claim died with him and could not proceed against his estate. Given the judge’s view that he had been required to reach an unjust decision, the wife was granted permission to appeal directly to the Supreme Court, bypassing the Court of Appeal. She subsequently died, but the appeal was continued on behalf of her estate.

Dismissing the appeal, the Supreme Court found that, on their true construction, the 1984 Act and the Matrimonial Causes Act 1973 create purely personal rights and obligations. The power of an English court to order financial relief after an overseas divorce can only be exercised as between living parties to a former marriage. The Court noted that any other conclusion would require major legal reform involving radical change to principles established by a long line of judicial authority.

As the husband was not domiciled in England and Wales when he died, it was not open to the wife to seek reasonable provision from his estate under the Inheritance (Provision for Family and Dependants) Act 1975. Given that she was also barred from proceeding with her claim under the 1984 Act, she was left with no possibility of obtaining financial relief. It was not, however, open to the Court to cut the Gordian knot presented by the existing legislation and only Parliament was competent to make the policy decisions required to reform the law.